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tv   [untitled]    August 26, 2012 1:30am-2:00am PDT

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means what you are acting under color of law. if the sheriff had used his authority as sheriff to dissuade a witness even though he was not the share of at the time -- the sheriff at the time, i still think that could explain a charge. what i am worried about is a relationship that is so general that what we are talking about is the affect on his ability to do the job going forward. i do not think that is what the voters had in mind when they wanted to remove someone for official misconduct. >> i was not saying that we have to find whether or not he would be ineffective or effective as the share of going for -- the sheriff going forward, just
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weather being convicted of the crime of false imprisonment or domestic violence falls under the standard of decency that we expect of the office of a share. -- the office of sheriff. not that he would be ineffective going forward, but taking this prong, does this prong meet the facts here to sustain a charge. chairperson hur: while i can agree about the point about missoula, if we are following option two, missoula clearly talks about this definition. it is the same language. he then goes on to say that the
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acts must be committed while in office, and official misconduct requires the direct relationship of the wrongdoing to the office held. and explains why missoula does not, because he was not performing his duties. that is where i get hung up, how to reconcile those. >> i think i am just reading missoula as pertaining to the first prong. it makes sense to me that that is a more narrow and restrictive view, but not addressing the second prong. commissioner renne said that is the gap that the voters decided to fill. chairperson hur: if we are going to say that the second prong has to relate back to this "in relation to duties" portion, i
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do not see how the second prong should be interpreted any differently than in missoula. we are still talking about the same language. maybe i am missing what you are -- commissioner renne: why have the second sentence if it does not mean anything other than what missoula was talking about? chairperson hur: what i am saying is i think missoula was explaining what "in relation to the duties" means. it could be broader, but they still have to relate to the duty. i am only relying on this a lot in that it helps nearest -- understand what kind of nexus is required. i agree that the decency standard is broader than the
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failure to act standard. can we -- i am just trying to figure out ways for us to move the ball forward. are we in agreement that there is a distinction between personal misconduct and official misconduct? >> how do you mean? chairperson hur: and a sheriff engage in misconduct that is not official? wrongful behavior that is not official misconduct? >> yes. chairperson hur: what would be an example of such a thing?
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>> i promised my husband i will be home, this time, by 7:00. i am not. that is personal misconduct. i have broken a promise to a family member. i do not think it is actionable at work, just to get the ball started. >> do you mean conduct that is unlawful that would not constitute official misconduct? is that what you mean? chairperson hur: what is conduct that would fall below the standard of decency that would not relate to the duties of a share of -- of sheriff? perhaps commissioner studley's example is a good one. >> breaking a promise to a friend or family member. it is not unlawful.
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if you want unlawful, you will have to search for another. >> perhaps misconduct that does not end up being unlawful if there is no criminal conviction. but it is something that was tasteless. >> there are all sorts of speech acts that might not be appropriate or tasteful or respectful, that are wrongful behavior but not official misconduct. >> what is the principal you use to draw the line? -- what is the principle you use to draw the line? >> i do not think we need to set
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a bright line rule, necessarily, unless you are uncomfortable with the fact, and you need to set a bright line rule. i think we need to figure out where the facts here rise to that level. i do not know that we have to set a rule for any time this comes up. >> i agree with that. i just asked because i am trying to get comfortable with this idea that -- what i like about bright lines is that it is easy for the next person to follow. i think, in a vacuum, bright lines are better than not bright lines. >> it is hard to find a bright -- >> you are right. our task is not to create -- we probably could decide without establishing a bright line rule, but i am trying to get comfortable with not having a bright line rule, and how you would decide similar issues, if
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we went with a more vague -- >> it is hard to draw a line with only one docked. part of our problem is we have just this one matter. we do not know whettmváp&e%ei worried about a slippery slope or a floodgate if we do not provide enough guidance, or if we do something that is hard for this or subsequent mayors to interpret. but it is asking a lot to try to into with a line and a formula for something that happens so rarely. we should not do it willy-nilly. i am with commissioner liu that we may be overburdening an already complex process by trying to imagine all the other possibilities when there is no
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population to reflect that. >> i have a question. the last time this even came up, which i guess was with supervisor chu, although it did not come to a hearing, and it was an actual criminal misconduct, and prior to that, mizzola was the only previous case. >> i believe there was one in 1932. >> i guess what i was trying to say earlier, in terms of the fairness issue -- you have this description, or this definition, of official misconduct on the books or in the charter. but the fact is, it is not used
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very often. it is used subjectively, or even arbitrarily, dare i say. it is not a matter of law that because somebody in elected office misbehaves in some way that they would automatically be charged with official misconduct and then go through some kind of process, be it something before the ethics committee, or even criminal. it is criminal, that is a whole different matter. i guess your concern is you do not want this to be the next time this comes up. you want it to be clearer, and not as murky as what we have had to deal with. but there is a lot of personal misconduct that goes on that falls below the standard of decency. some of it has already been referred to in this room. but nobody did anything about
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it. nobody said anything or brought it up. i do not know what bearing that has, exactly, on how we should decide this definition. it seems to me it still needs to be as broad as possible, because that is the only way it is going to be used, if i understand that. chairperson hur: i think you put the mayor in a tough spot, if it is too broad. every time he uses it, he will be accused of using it -- because it is so vague, it will always be subject to that challenge, and he may always feel he needs to bring it up, because he does not want to be looked at as letting official misconduct go. on the flip side, the defendant is always going to say, "look at
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these people who do all sorts of bad things. why did you choose my bad act?" it may not come up often, but it may come up more frequently if we do not come up with a bright line rules. i think we owe it to the public to really try our best to come up with an interpretation that is clear and could be followed, even if it is not perfectly bright line. >> just to say parenthetically -- i do not know if this is appropriate or not. often, when there is a case of misconduct, usually, it is personal misconduct, in the political arena across the country, usually those individuals, on their own, resigned without having to force any kind of public, you know, process, such as we have had to go through. we know of many many very well
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known cases of misconduct, but those individuals at least resigned in a timely manner. >> or took more affirmative steps to mitigate or demonstrate they could cooperate in other ways, reflecting the serious mess of the problem. -- the seriousness of the problem. >> i am not necessarily advocating this as the rule to adopt. but one fact that was compelling to me, which i think differentiates from the examples the public gave of what other types of personal misconduct did not amount to charges, is the
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fact that this resulted in a criminal conviction. when we took in the evidence to look atñii] the facts, there wea lot of disturbing facts that went along with that criminal conviction. that is what i find compelling about this, that perhaps differentiates, when members talked about affairs, and so forth. that is the distinction that i see. chairperson hur: so that any criminal conviction would inherently be relating to the duties of the office and fall below the standard of decency? >> there would still have to be an inquiry about what office that was, what the duties were, and what relationship that office might have. i am not saying it is automatic,
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necessarily. i am saying it is a factor to definitely be considered. chairperson hur: i think that is interesting. what do people think about taking a short break, and then maybe reconvening and sharing our views on the ultimate issue? ok, let us take 10 minutes. >> we are back in session. before the break, we had been discussing our views on the legal application of the facts in this case. we have had, i think, a robust
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discussion. i think at this point it may be useful to take a straw poll of how various commissioners would apply the law to the facts in this case, assuming option two. then, perhaps, we can address option one after that. yes, so just to be clear, option to -- optioned two -- the parties are missing -- you have the options. can you put that on the overhead? option 2 below, please. thank you. maybe we can make that a little
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bigger. [laughter] >> he is trying. [laughter] tap it when it gets to echo mr. keith, didn't you effectively use this earlier today?
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ok. >> well somebody stands here, he doing that. chairperson hur: i am not sure anybody can read that. >> maybe somebody could read that out loud, so they understand what the language is. chairperson hur: sure. the way i read option 2 below is official misconduct. "official misconduct means any behavior by a public officer in relation to the duties of his office, will fall in its character, including any failure, and neglect, or
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refusal by an officer to meet duty required by law, or conduct that stands below decency, good faith, and right action required of all public officers, including a specific conflict of interest or violation of a governmental ethics law." commissioner renne: that is option 2 below? -- option two? chairperson hur: that is option two . if you will indulge me, i will summarize my view. i think you understand it. perhaps i can give one last shot at explaining it. i think this charter provision was meant to be narrowed. i think it provides the mayor with an extraordinary tool that can be very useful and very consistent with how the public intended it to be used.
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but given the force of the tool, i think that people wanted it to be interpreted narrowly. to me, the best way to interpret this provision is to have as clear a line as we can as to what it means to relate to the duties of his or her office. while i appreciate suggestions that perhaps this could be limited to unlawful conduct, and thereby create some kind of line, that we could import rules that are used in the employment context, i think the only principled way to limit this provision is to have a direct nexus between the wrongful
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behavior and the relationship to the duties. i do not think it can be limited to unlawful conduct, given the purposeful use of the word "wrongful" rather than "unlawful." i do not think it can refer to multiple standards when it refers to only one. the conduct, in this particular case, i think was egregious. for all those domestic violence advocates who spoke today, i appreciate your attendance. i do not want you to interpret what i am saying to suggest that domestic violence is a private matter, or not a very serious matter. but private and public does not mean the same thing as official.
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i firmly believe that the people intended official misconduct to be something limited, because of the concern that it could be used in the political process. i also understand that the evidence likely showed that the sheriff is going to have a hard time performing his duties, going forward. a sheriff who commits an act of violence, i think, in my mind does fall below the standard of decency i would expect of a public official. but, again, i do not think it is our job to determine what his level of efficacy is going to be, going forward. i implore my fellow
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commissioners to take a narrow and principled view of this clause that will enable those who use it, going forward, to apply it in a consistent way. there is a reason why we have only gone through this once. i do have concerns that a broad reading of this statute could potentially lead to hearings like this, that are potentially used for improper purposes. i welcome the views of my fellow commissioners.
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>> i do agree that there must be some relationship to the office, that the wrongful behavior has to have some relationship to the office, but i do believe the intent of the voters was to add a clause that was not there at the time of the mazzola case. they knew what the law was at the time, and they chose to add a second clause. i would read the clause in a very similar vein, in a narrow vein, as relating to the office, but i would read the second clause as conduct that falls below the standard of good and right action in plied as required for all public officers. i would read it, as applied to this case, conduct that falls below the standard of decency
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implicitly required of the sheriff. that is how i would interpret the provision. chairperson hur: would you find official conduct occurred in this case? >> yes, as to one and four, the physical conduct, basically. commissioner renne: i have expressed my view as to what i think that second provision provides. i think the voters would be shocked if we were to say that a public official who pleaded guilty to false imprisonment had not engaged in official misconduct.
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clearly, a public official who has pleaded guilty, particularly given the circumstances of this case, that that conduct clearly falls below anybody's standard of decency, good faith, and right action. i would believe that is what the overwhelming majority of voters would say. that does not address the second part we have talked about. for us to say that a public official who has pleaded guilty has not committed an act of official misconduct because it was not directly in performance of his duties, but it took place in a domestic setting -- i clearly would vote to recommend that we find that there was a
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violation of the section of official misconduct. commissioner studley: i think your points are very well taken. the potential abuse is real. i look, though, at the way the voters developed and amended this, and think they did not mean to create a very specialized and narrow tool. i look at the fact that it says "any wrongful behavior," when there are other words that could have been used to talk about degree of wrongful mess. and it falls below the standard of decency. they could have said "well below" or "egregious."
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i take that as saying something about the voter expectation that we were setting a high bar, and that they wanted to create an effective tool, and balanced the risks you werei creating a series of protections. that is where this cannot be effectuated by the act of a single officer. it is not just the mayor acting alone. there is a three step process that i think is important as a series of checks and balances, different rules and different kinds of expertise. there is no doubt, and the public has made this point many times -- there is a significant investment in time, in attention, in disruption, in risk in doing this instead of
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something else, that is a high public cost of trying to maintain the standard set by the public. we may become more official -- more efficient if this comes up again. i think there is also a lesson in this that a mayor would act very carefully in using this tool, because there are extra- legal considerations -- public reaction, press considerations -- that would also mitigate against overuse, or at least suggest caution. i will cut to the chase. for me, i would find official misconduct under option two. i think there is significant relationship between the standard and the duties of the office. i mayb

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